RAMCHANDRA BIHARILAL FIRM Vs. MATHURAMOHAN NAIK

JUDGEMENT

(1.) DEFENDANT No. 1 is the appellant, This appeal arises out of a suit filed by the plaintiff for declaration of title, and possession of 12. 88, acres described in schedule Ka.

(2.) THE plaintiff's case is this; The suit land originally belonged to one Narahari mohapatra, grand-father of defendants 2 and 3. Defendant No. 1 Ramchandra beharilal, a firm, obtained a money decree against Narahari. Defendant No. 1 put the suit land in court sale in execution of the said decree and purchased the same. On January 18, 1956 by a registered sale deed Ext. a/1 defendant No. 1 sold the suit land 12. 88 acres in area for consideration of Rs. 600/ -. It was agreed that Rs. 300/- would be paid immediately and possession would be delivered; that the balance of Rs. 300/- would be paid one year after; then tha sale deed itself would be delivered after such payment of the entire consideration money. In pursuance of the said agreement Rs. 300/- was immediately paid and possession was delivered. The balance of Rs. 300/- was not paid. On April 5, 1956 defendant No. 1 sold the suit land to defendants 2 and 3 under a registered sale deed Ext. A-2. The subsequent purchasers defendants 2 and 3 obstructed the plaintiff and took away paddy worth Rs. 200/- which the plaintiff claims as damages. On April 2, 1957 the plaintiff filed the suit for declaration of his title on the basis of his sale deed Ext. , A-1, and for setting aside the subsequent sale deed dated April 5, 1956 executed by defendant No 1 in favour of defendants 2 and 3 under the registered sale deed ext. A-2 as aforesaid.

(3.) THE defence is this : It was agreed that the purchaser plaintiff would pay Rs. 600/- within three days; that the vendor defendant I on receipt of Rs. 600/- will endorse the Registration Ticket in favour of the plaintiff to get the sale deed from the registration office. The plaintiff having failed to pay the consideration money a registered notice Ext. C-1 was given by defendant No. 1 to the plaintiff on January 25, 1956. The said notice was received by the plaintiff on February 1956. Thereafter by a registered cancellation deed dated February 15, 1956 the vendor defendant No. 1 cancelled the previous sale deed in favour of the plaintiff. The defence is that no consideration had passed. The plaintiff's case of alleged payment of Rs. 300/- is false; there is no delivery of possession of the suit land to the plaintiff.